Citation NR: 9723321
Decision Date: 07/03/97 Archive Date: 07/15/97
DOCKET NO. 95-12 220 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
1. Whether the veteran continues to be incompetent for
Department of Veterans Affairs (VA) benefit purposes.
2. Entitlement to an earlier effective date for the
establishment of service-connection for schizophrenia,
paranoid type.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. A. Markey, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1971 to March
1975 and from February 1977 to August 1978.
This matter came before the Board of Veterans Appeals (Board)
from a September 1994 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania
that denied the veteran’s claim for an earlier effective date
for the establishment of service connection for
schizophrenia, paranoid type. A notice of disagreement was
received in October 1994. A statement of the case was issued
in March 1995. A substantive appeal was received from the
veteran in April 1995.
This matter also comes before the Board from an April 1996 RO
decision that determined that the veteran continued to be
incompetent for VA benefit purposes. A notice of
disagreement was received in June 1996. A statement of the
case was issued in July 1996. A substantive appeal was
received from the veteran in July 1996.
Finally, the Board notes that in the September 1994 decision,
the veteran was also denied entitlement to special monthly
compensation. A notice of disagreement was received in
October 1994, and a statement of the case issued in March
1995. However, a substantive appeal, with the specificity
required pursuant to 38 C.F.R. § 20.202 (1996), was not
timely filed. As such, the issues in appellate status are as
listed above.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in substance,
that the disability evaluation for the veteran’s service
connected schizophrenia, paranoid type should be effective
from August 1979 or December 1986. They also contend, in
substance, that the veteran is competent for VA benefit
purposes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that entitlement to an effective
date prior to November 9, 1988, for the establishment of
service connection for the veteran's schizophrenia, paranoid
type is not in order and that the preponderance of the
evidence is against the claim for a declaration of competency
for VA benefit purposes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the RO.
2. The RO, in March and April 1987, denied the veteran’s
request to reopen his claim for entitlement to service
connection for schizophrenia. The veteran did not file a
timely substantive appeal to either of these decisions, and
as such, they are final based on the evidence then of record.
3. On November 9, 1988, the RO received a claim for
entitlement to service connection for a psychiatric disorder.
4. In an April 1993 Board decision, service connection for
paranoid schizophrenia was established, and in the appealed
September 1994 rating action, an effective date of November
9, 1988 was assigned for the establishment of service
connection for this disorder, characterized as schizophrenia,
paranoid type.
5. As a result of totally disabling schizophrenia, the
veteran lacks the mental capacity to contract or manage his
own affairs including disbursement of funds without
limitation.
CONCLUSION OF LAW
1. The requirements for an effective date for the grant of
service connection for schizophrenia, paranoid type prior to
November 8, 1988, are not met. 38 U.S.C.A. §§ 5110, 5107
(West 1991); 38 C.F.R. §§ 3.400(r) (1996).
2. The appellant is mentally incompetent for VA benefit
purposes. 38 C.F.R. § 3.353 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's claims are well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). The Board is satisfied that all relevant facts
regarding these claims have been properly developed to the
extent indicated by law and that no further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a) (West 1991).
I. Entitlement to an earlier effective date for service-
connected schizophrenia, paranoid type.
A review of the file reveals that the veteran's December 1986
claim for entitlement for service connection for
schizophrenia was denied in March and April 1987. The
veteran filed another claim for entitlement to service
connection for a psychiatric disorder on November 9, 1988,
and in a rating action dated in November 1988, it appears
that the RO found that new and material evidence had been
submitted by the veteran, but again denied this claim for
entitlement to service connection for schizophrenia on the
merits.
In decisions dated in May, August, and September 1990,
service connection was denied for schizophrenia, although it
is unclear whether these decisions were based on a finding
that new and material evidence had not been submitted
sufficient to reopen this claim, or whether these decisions
were denied on the merits. In any event, in an April 1993
Board decision, service connection for paranoid schizophrenia
was established, and in the appealed September 1994 rating
action, an effective date of November 9, 1988 was assigned
for the establishment of service connection for this
disorder, characterized as schizophrenia, paranoid type.
It appears that the RO ultimately determined that a statement
from the veteran received in December 1988 constituted a
notice of disagreement of the November 1988 rating action
which reopened but then denied (on the merits) the veteran's
claim for entitlement to service connection for
schizophrenia. The Board notes that an statement of the case
regarding this claim was issued in March 1995, and a
substantive appeal was received in April 1995.
The veteran and his representative contend, in substance,
that the disability evaluation for the veteran’s service
connected schizophrenia, paranoid type should be effective
from August 1979 or December 1986. The governing legal
criteria provide that the effective date of an award based on
a claim for compensation which is reopened after a final
disallowance will be the day of receipt of claim or the date
entitlement arose, whichever is later. 38 U.S.C.A. § 5110
(West 1991); 38 C.F.R. § 3.400(r) (1996). As noted, rating
actions denying this claim in March and April 1987 were
unappealed, and it was determined that a timely appeal was
perfected regarding the November 1988 decision, and that the
November 1988 claim which led to this rating action was
ultimately granted by a April 1993 Board decision.
There is no legal basis for an effective date prior to
November 9 1988, the date of receipt of this (ultimately
granted) claim. It should be noted that the Board is legally
bound in its decisions by applicable statutes, VA regulations
and precedent opinions of the VA General Counsel.
38 U.S.C.A. § 7104(a),(c) (West 1991).
The governing legal criteria in this case are specific in
that an effective date for an award of service connection
(based on a reopened claim) is based on the actual date of
receipt of the veteran’s claim or when entitlement arose,
whichever is later. Consequently, since the claim for
entitlement to service connection for a psychiatric disorder
was received on November 9, 1988, which is later than the
date entitlement arose, this date is the proper effective
date for the grant of service connection for this disorder.
Thus, the claim for an earlier effective date must be denied.
38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400(r) (1996).
In reaching this conclusion the Board finds that the evidence
of record is not so evenly balanced that there is doubt as to
any material issue. 38 U.S.C.A.§ 5107 (West 1991). The
evidence clearly indicates that the claim for entitlement to
service connection for schizophrenia was received on November
9, 1988, and as such, there is no factual basis for
resolution.
II. Whether the veteran continues to be incompetent for
Department of Veterans Affairs (VA) benefit purposes.
The pertinent VA regulatory provision provides that rating
agencies are authorized to make official determinations of
incompetency for VA purposes. Unless the medical evidence is
clear, convincing and leaves no doubt as to the person's
incompetency, a determination of incompetency will not be
made without a definite expression regarding the question by
the responsible medical authorities. Where there is doubt as
to whether the beneficiary is capable of administering his or
her funds, such doubt will be resolved in favor of
competency. Whenever it is proposed to make an incompetency
determination, the beneficiary will be notified of the
proposed action and the right to a hearing. 38 C.F.R.
§ 3.353 (1996).
A mentally incompetent person is one who, because of injury
or disease, lacks the mental capacity to contract or to
manage his or her own affairs, including disbursement of
funds without limitation. Such determinations will be
controlling for purposes of direct payment of current
benefits. The rating agency will consider evidence of the
recommendation of the Veteran's Service Officer of
jurisdiction, together with all other evidence of record, in
determining whether its prior decision should be revised or
continued. Determinations relevant to incompetency should
be based upon all evidence of record and there should be a
consistent relationship between the percentage of disability,
facts relating to commitment or hospitalization, and the
holding of incompetency. When there is doubt as to whether
the beneficiary is capable of administering his or her funds,
such doubt will be resolved in favor of competency.
38 C.F.R. § 3.353 (1996).
In this case, the veteran was granted service connection for
paranoid schizophrenia by a April 1993 Board decision. The
evidence which was of record at that time included medical
evidence which demonstrated the presence of psychotic
symptoms within one year of the veteran's separation from
service in August 1978 and more recent evidence that
confirmed the presence of chronic schizophrenia. This
decision was implemented by the RO in September 1993, and a
disability evaluation of 50 percent was assigned from March
1990. In May 1994, the RO assigned a 100 percent evaluation
for this disability from February to April 1994 (at which
time the 50 percent evaluation would be reinstated) based on
a period of hospitalization when he was involuntarily
admitted for multiple complaints including that he exposed
himself to his mother and that he was a fire hazard.
In September 1994, the RO increased this rating to 100
percent disabling based on a contemporaneous VA examination,
wherein it was noted that the veteran related throwing money
in the street, having multiple cars repossessed, and abusing
alcohol. The diagnosis noted on this examination was
schizophrenia, paranoid, chronic. The examiner noted that
the veteran’s ability to manage his benefit payments in his
best interest without restriction appeared to be questionable
at that time. Based on this determination, the RO also
proposed that the veteran be rated incompetent for the
purpose of payment of VA benefits. In conjunction with
38 C.F.R. § 3.353 (1996) the veteran was properly notified,
by a letter dated in September 1994, of this proposal and his
right to a personal hearing. As no response was received
from the veteran, the RO, in an unappealed March 1995
decision, made the determination that the veteran was
incompetent for VA benefits.
A letter was received by the veteran in April 1996 wherein he
requested the accomplishment of a VA examination in order to
determine if he was now capable of handling his VA benefits.
As such, a VA psychiatric examination was accomplished in
April 1996, the report of which notes that the veteran has a
long history of chronic paranoid schizophrenia beginning with
VA hospitalization in October 1979. At that time he was
diagnosed with acute schizophrenia, paranoid type. It was
further noted that in 1980 he was diagnosed with chronic
paranoid schizophrenia, and that he has a history of alcohol
abuse.
The examination report indicates that the veteran currently
lives with his mother and that his father manages his funds.
In this regard, it is noted that during the examination the
veteran admitted that his father does pay the necessary
bills. However, the veteran stated that he wanted to handle
his compensation directly so he could help his mother. The
veteran further admitted that in the past he did not handle
his money very well in the past, including that he “was
drinking his check up.” He did deny drinking during the
previous year.
Objective findings noted included that recent and remote
memory was adequate, insight somewhat limited, speech mildly
impoverished, but eye contact good. The veteran denied
current hallucinations or delusions. The examiner commented
that
The veteran has a longstanding mental
disorder. When he does not take his
medications he relapses and hence becomes
somewhat loud but not assaultive. When
taking his medications he appears
somewhat placid and is able to take care
of himself on a day to day basis. As
long as he is not subject to any stress
or pressure, this is likely to continue.
The veteran appears to be well stabilized
on his current medications and is not
abusing alcohol at the present time. In
this examiner’s opinion, his funds should
continue to be managed by a conservator.
The veteran's judgment is rather poor by
history, and as things are fairly stable
at present the wiser course would seem to
be to maintain the present arrangement...
As a result of the examination, the veteran was diagnosed
with, among other things, schizophrenia, chronic, paranoid
type, and the examiner noted that he should not be considered
competent at the present time for VA purposes.
Based on this examination the RO, in the appealed decision
dated in April 1996, determined that the veteran continued to
be incompetent for Department of Veterans Affairs (VA)
benefit purposes.
The Board finds that the evidence of record in this case
establishes that the veteran continues to be unable to manage
his own affairs. As noted above, when the veteran was
directly receiving his VA compensation, he squandered it on
alcohol, threw it in the street, and spent it on cars he
apparently could not afford. With respect to this current
claim, the recent VA examination, including the opinion by
the examiner who conducted the examination, noted above,
clearly reveals that, absent management by a third party the
veteran, primarily due to his service connected
schizophrenia, paranoid type, manifests spendthrift habits
which are detrimental to his well being.
The current evidence of record leads the Board to conclude
that the veteran continues to lack the mental capacity to
manage his own affairs in a responsible manner, including
the disbursement of funds without limitation. The evidence
is not equally divided on this point, and no reasonable doubt
arises; rather, the preponderance of the evidence is in favor
of a finding of continued incompetency. Therefore, the
veteran's claim must be denied.
ORDER
An effective date earlier than November 9, 1988 for the grant
of service connection for schizophrenia, paranoid type is not
warranted. The appeal is denied.
Entitlement to a determination of mental competency for VA
benefits purposes has not been established. The appeal is
denied.
(CONTINUED ON NEXT PAGE)
RICHARD D. TURANO
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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